Superfund Update (8-3-00)

The Comprehensive Environmental Response, Liability, and Compensation Act
of 1980 (CERCLA) has not been reauthorized or updated since the Superfund
Amendment and Reauthorization Act (SARA) of 1986. The Superfund tax,
which funded the program, expired 1995 and has not been renewed.
Critics argue that Superfund needs a complete overhaul and many bills have
emerged to that effect. Program supporters admit that specific sections
need amendment, including the Superfund trust fund, brownfields sections,
and issues of liability and clean-up standards. Congressional dispute,
mainly down party lines, has divided bills into those for a comprehensive
Superfund reform, and those concerned with sections of the statute.
Congressional Research Service Reports provide in depth summary of the
Superfund situation can also be found at the National
Council for Science and the Environment website.

Most Recent ActionBecause Congress has stalled on a comprehensive Superfund reformation
bill for the last several years, Sen. Lincoln Chafee (R-RI) has lifted
out the section on brownfields in order to expedite the process of funding
state and federal cleanup and reuse of brownfield sites. The purpose of
S.
2700, the Brownfields Revitalization and Environmental Restoration
Act of 2000, is to promote the cleanup and reuse of brownfields, to provide
financial assistance for brownfields revitalization, and to enhance state
response programs. It also continues the legacy of Lincoln
Chafee's late father Sen. John H. Chafee whose S. 1090 bill to reauthorize
and amend CERCLA stagnated in Congress last year. A hearing
took place on June 29, 2000, revealing broad support for the bill from
all sectors; however, its ultimate passage may be hindered by the opinion
of some congressional members that brownfields legislation should remain
part of a comprehensive Superfund reform bill.

One explanation for the continued freeze on Superfund reform legislation
came out on July 1, 2000. According to the Washington Post, Senate
Majority Leader Trent Lott (R-MS) signed a secret written agreement with
Sen. Micheal D. Crapo (R-ID) that he would not allow any revisions to superfund
statutes to make it to the floor - unless it was a complete reform of current
superfund law - if Crapo agreed to pass Lott's bill exempting scrap metal
from Superfund requirements. Crapo originally feared that Lott's
bill would hinder his attempts to rehaul the entire Superfund program,
something Idaho's abundant mining companies support. Lott succeeded
in getting his legislation inserted into the fiscal year 2000 omnibus appropriations
bill, passed in late November 1999. The rider language, which was
taken from Lott's bill,(S.1528)
gives recyclers of several materials -- scrap paper, plastic, glass, textiles,
rubber (except whole tires), metal, and various types of spent batteries
-- a break from liability. These materials include . Some proponents
of broad Superfund reform opposed this legislation because they believe
that such riders will make passing a larger, more comprehensive bill less
likely in the future. Lott and several other legislators, however,
have vowed that more reform will be addressed in the 106th Congress.

Current Congress: House ActionAs last year's congressional session wound down, members of the House
tried in vain to produce a Superfund bill that would receive support from
both parties. The bi-partisan support of H.R.1300
strongly depended on whether House Ways and Means Committee Chairman Bill
Archer reinstated the Superfund tax, which would fund several of the bill's
main programs. When the tax was not reinstated, both bills lost much
of their Democratic support and negotiations came to a standstill.

Attempts to completely revise SuperfundThe House Commerce Subcommittee on Finance and Hazardous Materials
held a hearing on Superfund
on March 23, 1999, to determine support for a comprehensive reform of the
program. Separately, House Subcommittee on Water Resources and Environment
Chair Sherwood Boehlert (R-NY) introduced H.R.
1300, a bill to amend CERCLA, " to promote brownfields redevelopment,
to reauthorize and reform the Superfund program, and for other purposes."
The bill, companion to S. 1090 (see below), would remove barriers for brownfields
redevelopment and alleviate developers of liability concerns for these
sites. H.R. 1300 includes provisions to exempt small businesses,
municipalities and recyclers from liability as well as reinstates the Superfund
tax. The bill, which has more than 50 cosponsors -- evenly divided between
Republicans and Democrats -- has been referred to the House Committees
on Commerce, Transportation and Infrastructure, and Ways and Means.
During a heated House Water Resources and Environment Subcommittee hearing
on May 12, 1999, Environmental Protection Agency (EPA)
Administrator Carol Browner testified that H.R. 1300 represents "a good
faith effort to address the issue, but ... fixes problems that no longer
exist and may break things that are already working." She listed
several problems with the bill and suggested that they write a bill that
addresses topics on which the Administration and Congress both agree, such
as provisions that address innocent landowners, brownfields, intermediate
landowners, and prospective purchasers. Browner stated that they could
pass and sign into law that type of bill "in lightening speed" and avoid
the consequences of a larger bill. Addition information on the hearing
is available from the subcommittee
website.

On June 10, 1999 the Subcommittee on Water Resources and Environment
marked up H.R.
1300, the Recycle America's Land Act of 1999, and the bill was passed
out of subcommittee by a 22-9 vote. Bill sponsor and subcommittee Chairman
Sherwood Boehlert (R-NY) stated that many of the administration's concerns
were addressed in this new draft. Democrats argued that the bill
would slow the pace of cleanups and give overly broad liability relief.
Most members stated that there is some urgency to pass legislation, but
that there are still unresolved differences. During the subcommittee
mark up, several amendments were offered to resolve problems that EPA Administrator
Carol Browner had with the bill. Rep.Robert Menendez (D-NJ) offered
an amendment to include contaminated sediments in the natural resource
damage section of the bill. Many representatives expressed concern
that the amendment could have far-reaching consequences; therefore they
were not willing to support it. Chairman Boehlert stated reluctance
about the amendment as it was a contentious issue that could derail H.R.
1300. Menendez reluctantly withdrew his amendment with a promise
from the chair that he will work personally with Menendez on this issue.
A summary of the markup is
available on this website. H.R. 1300 was approved by the full committee
on August 5th.

H.R.
1750, the Community Revitalization and Brownfield Cleanup Act of 1999,
was introduced on May 11, 1999, by Rep. Towns (D-NY), the Ranking Member
of the House Commerce Subcommittee on Finance and Hazardous Wastes.
The main focus of this bill is "to assist local governments in assessing
and remediating brownfield sites, to amend CERCLA, to encourage State voluntary
response programs for remediating such sites, and for other purposes."
Titles included in this bill, other than those involving brownfield reform,
are innocent landowner, prospective purchaser and contiguous property owner
liability reforms, as well as seller liability relief and state voluntary
response programs to help with cleanup. This bill, referred to several
House committees, was co-sponsored by every Democrat in the House and received
strong support from the Clinton Administration.

H.R.
2580, the Land Recycling Act of 1999, was introduced by Rep. Jim Greenwood
(R-PA) on July 21, 1999, as an alternative to H.R. 1300. The focus
of the two bills are similar: "A bill to encourage the creation,
development, and enhancement of State response programs for contaminated
sites, removing existing Federal barriers to the cleanup of brownfield
sites, and cleaning up and returning contaminated sites to economically
productive or other beneficial uses." The main difference between
the bills, as introduced, is the lack of liability provisions made in H.R.
2580. During a September 29, 1999 markup of H.R. 2580 by the House
Subcommittee on Finance and Hazardous Waste, it was replaced with Chairman
Michael Oxley's (R-OH) substitute bill. Liability provisions taken
from H.R.1300 were included so that the two bills were fundamentally similar.
This markup showed the partisan nature of Superfund reform in general;
in contrast to the nearly unanimous passing of H.R.1300 in the full committee,
the amended substituted bill narrowly passed the subcommittee by a 17-12
vote. A hearing regarding
several Superfund related bills was held by the House Commerce Subcommittee
on Finance and Hazardous Waste on September 22, 1999.

Attempts to use tax measuresBoth the House and Senate tried to use tax legislation to pass some
form of Superfund reform during the 1999 summer months. Combining the Superfund
trust fund with the Leaking Underground Storage Tank (LUST) trust fund,
H.R.
2248, passed the House on July 22, 1999. This bill skirts the
controversial issue of reinstating the Superfund Tax by funding Superfund
clean up costs from the $1.4 billion dollars currently in the LUST fund.
An omnibus bill was passed in conference on August 5, 1999, but the President
vetoed it on September 23, 1999. Tax credit for brownfield remediation
expenses was extended through the end of 1999 as part of H.R.
1180, which passed Congress in late November 1999 and was signed by
the President in mid-December.

Current Congress: Senate ActionSenate action on Superfund legislation has met with different but equally
insurmountable obstacles as House efforts. Several bills championed by
the late Sen. John Chafee (R-RI), and later by his son Lincoln Chafee (R-RI),
have carefully tried to compromise on volatile issues such as remedy selection
and liability. In light of the great volume of tabled Superfund bills,
and despite some senators' insistence that Superfund needs to be reauthorized
as one package bill, it is likely that legislation introduced in the future
will endeavor to target specific statute problems.

Attempts to partly revise SuperfundSuperfund reform legislation was introduced in the Senate on May 20,
1999, by the chairmen of the Environment and Public Works Committee and
that committee's Superfund, Waste Control, and Risk Assessment Subcommittee
-- Senators John Chafee (R-RI) and Bob Smith (R-NH), respectively. S.
1090, the Senate companion bill to H.R. 1300 (see above), was notable
for the absence of many provisions that proved highly contentious in previous
comprehensive Superfund reform efforts. According to the Energy and Environment
Weekly Bulletin, "the bill does not include a remedy selection or natural
resource damages title. Also, the new Senate bill does not contain extremely
contentious language from last year's bill that would have allowed records
of decisions and consent decrees to be reopened. Also, there are
no groundwater provisions in the new bill." The bill does provide
$100 million in grants for brownfields redevelopment. However, it
does not reinstate the Superfund tax, which expired in 1995 and which the
Administration considers a key to its support.

On May 25,1999, the Senate Committee on Environment and Public Works
held a hearing
on S. 1090,
the Superfund Program Completion Act of 1999. In their opening statements
members were divided on support of the bill. Senators John Chafee,
the bill sponsor (R-RI), James Inhofe (R-OK), Bob Graham (D-FL) and George
Voinovich (R-OH) voiced strong support for the bill. Senators Max
Baucus (D-MT) and Michael Crapo (R-ID) both stated that while there were
good parts of the bill, it still needed work on unresolved issues such
as liability, natural resource damage, states ability to give finality,
and funding for the program. Senator Lautenberg was the most vocal about
his dislike of the bill, arguing that it would set back the program after
it has made "significant stride in clean ups and reducing senseless litigation.
The witnesses included state officials, who argued for more brownfield
reclamation support, and state environmental officers, who supported giving
more power over cleanup to the states. One witness, owner of a small
business, argued for liability reform at co-disposal landfills. A
representative of the realtor industry supported state's being allowed
to give finality to sites, preventing any future claims for clean up. A
representative from the environmental community argued against requiring
a governor's request for a site to be listed on the National Priority List
as it precluded citizens being able to petition for a site being listed.
S. 1090 was scheduled for a committee vote on July 28, 1999, but was cancelled
after Democrats asked for more time to negotiate.

Attempts to use tax measuresS.
1429, which passed the Senate on July 30, 1999, included expanded tax
credits to encourage cleanup at any brownfield location -- previous credits
applied only to "Empowerment Zones, Environmental Protection Agency pilot
sites, and high-poverty areas." Because more sites are eligible for
the credit, the cost is estimated to increase to $782 million dollars over
10 years. See House Action for information
on the related bill H.R. 2248.

At the end of March 2000, Sen. Lincoln Chafee (R-RI) introduced
two new Superfund bills. S.
2334 would extend expensing of environmental remediation costs for
an additional 6 years and include sites in metropolitan statistical areas.
S.2335,
among other things, would authorize a program under the Secretary of the
Army to provide assistance in the remediation and restoration of brownfields.
The introduction of these bills is an attempt at a fresh start regarding
Superfund legislation, which came to a disappointing halt last session,
much to the chagrin of Chafee's father, the late former Chairman of the
Senate Environment and Public Works Committee, Sen. John Chafee (R-RI).
The bills are still awaiting Senate committee action.

BackgroundThe Superfund hazardous waste cleanup program was created by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (CERCLA).
Major revisions were made by the Superfund Amendments and Reauthorization
Act of 1986 (SARA). The Superfund program provides a system requiring
polluting parties to take responsibility for remediating seriously contaminated
areas. In the case of lands where the responsible parties cannot
be determined, the area is placed on the Superfund National Priorities
List (NPL) where EPA's Superfund trust
clean up funds come from a tax levied on petroleum and chemicals supplies.
Over the last 19 years, nearly half of the approximately 1300 sites on
NPL have been remediated. Contention over Superfund statute details
has prevented the tax from being reinstated since its expiration in 1995.
For example, critics dislike its retroactive nature which usurps previous
(more lax) legal standards for hazardous waste disposal. Each site
costs on average $20 million to remediate and may have over 100 potentially
responsible parties. Thus, it is worth it to delay the cleanup and
attempt to spread the costs through legal processes. Opponets claim
remediation standards are too stringent and environmental groups contend
that sites should be restored to the cleanest possible level, not just
to levels that limit human exposure based on future use. States have
been arguing for more control over NPL site selection and remedy techniques.
The popular brownfields section of Superfund faces debates over whether
or not it should be part of and funded by CERCLA monies. The brownfields
program was designed to promote the clean up and economic redevelopment
of low-level contamination sites not on NPL. Recent legislation proposes
to authorize brownfields as its own program that would provide tax
incentives to spur more cleanups. The National
Council for Science and the Environment has several in-depth papers
from the Congressional Research Service explaining the statute.